659 F.

2d 420

Warren C. NELSON, et al., Appellees,

v.
George COLLINS, et al., Appellants.
John H. X. WASHINGTON, et al., Appellees,
v.
Gerald A. KELLER, et al., Appellants.
Nos. 81-6347, 81-6368.

United States Court of Appeals,

Fourth Circuit.
Heard En Banc June 1, 1981.
Decided Sept. 14, 1981.

Stephen B. Caplis, Asst. Atty. Gen., Chief Correctional Litigation,

Stephen H. Sachs, Atty. Gen. of Maryland, Baltimore, Md. (David H.
Feldman, Asst. Atty. Gen., Baltimore, Md., on brief), for appellants.
Nevett Steele, Jr., Baltimore, Md. (Whiteford, Taylor, Preston, Trimble &
Johnson, Baltimore, Md., on brief), Paul D. Bekman, Baltimore, Md.
(Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A., Baltimore,
Md., W. Michel Pierson, Pierson & Pierson, Baltimore, Md., on brief),
Lawrence B. Coshnear, Baltimore, Md. (Warren A. Brown, Richard A.
Seligman, Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellees.
Before WINTER, Chief Judge, and BUTZNER, RUSSELL, WIDENER,
HALL, PHILLIPS, MURNAGHAN, SPROUSE and ERVIN, Circuit
Judges, sitting en banc.
DONALD RUSSELL, Circuit Judge:

This is a consolidated appeal involving three actions charging unconstitutional

overcrowding in three separate units of the Maryland State Prison System.
These actions have been engaging the attention of the Maryland District Court
for a number of years. One relates to conditions at the Maryland House of
Correction ("MHC") and resulted in a decree reported under the title Johnson v.

Levine, 450 F.Supp. 648 (D.Md.1978). A second, reported in Nelson v. Collins,

455 F.Supp. 727 (D.Md.1978), dealt with conditions at the Maryland
Penitentiary and the Maryland Reception, Diagnostic & Classification Center
(generally referred to as "MRDCC"). In both of those cases the District Court
found unconstitutional overcrowding and ordered by way of relief the
elimination of double celling on or before April 1, 1979. From both of those
decrees, an appeal was taken to this Court. After an expedited consolidated en
banc hearing, the appeals were decided in our opinion reported under the title,
Johnson v. Levine in 588 F.2d 1378 (4th Cir. 1978).
2

In our opinion in Johnson, we began by declaring that "double celling," the

housing of two prisoners in a cell initially designed for single occupancy, was
not itself a "violation of the Constitution," but added that, if accompanied by
other serious deprivations, it could be "a relevant factor" in determining
whether "(u)nder the totality of all the circumstances (including the double
celling) the aggregate effect amounts to cruel and unusual punishment." On the
facts of the two cases under review, we held that the District Court had
"reasonably found that the point (of cruel and unusual punishment in the
constitutional sense) had been reached here." But we added in connection with
the remedy decreed by the District Court, particularly the time fixed for the
correction of the overcrowding (i. e., April 1, 1979), that

3 we are convinced that the overcrowded conditions cannot be completely

"...
eliminated without the construction and utilization of a new facility, which Maryland
proposes to have available by June 1, 1980. Since the constitutional violation here is
not as extreme or as shocking as in some of the reported cases, and since Maryland's
plan is practical and reasonable and will achieve the required objective of
elimination of overcrowding in its penal institutions, we think its plan and its
schedule deserve judicial approval." Id. at 1381.
4

We accordingly remanded the cases to the District Court "with instructions to

fashion new decrees which (would) incorporate Maryland's plan and its
schedule (of June 1, 1980) for the elimination of overcrowding in the two penal
institutions."

On remand, the District Court entered modified decrees in accordance with our
mandate. In the Johnson case (MHC), the modified decree required the
elimination of double bunking by June 1, 1980 and added "that on and after that
date, no more than 1294 inmates could be housed at the MHC." Similarly, in
the Nelson case (MRDCC), double celling, "with limited exceptions," was
ordered eliminated "by June 1, 1980, and that thereafter the population of the
combined institutions should not exceed 1003 inmates."

During the same time that the actions involving the Maryland House of
Corrections (Johnson v. Levine ) and the Penitentiary Complex (Nelson v.
Collins ) were pending, a third action was begun by the inmates at the
Maryland Correctional Institution at Hagerstown (MCI). The constitutional
claims in this case were similar to those in the other two actions. That action
resulted in a consent decree entered on the same day that we heard the appeals
in Johnson and Nelson. Under this consent decree the defendants (the
Governor, the Commissioner of the State Division of Correction and the
Institution Superintendent) agreed to a schedule whereby double celling at the
Institution would be eliminated by January 1, 1981, after which time the
Institution's inmate population would be limited to no "more than six hundred
seventeen (617) inmates." Washington v. Keller, 479 F.Supp. 569
(D.Md.1979).

Since the entry of the decrees in the three cases, the record indicates that the
State authorities have proceeded with reasonable diligence to meet the
mandates of the Court. So much was found by the District Court in its order of
January 5, 1981, to which we refer in greater detail later. Recognizing, as we
had in our opinion in Johnson, that the elimination of the unconstitutional
conditions in the State prison system depended largely upon "the construction
and utilization of a new facility," the State has contracted for additional
facilities designed to relieve those conditions.1 However, the State authorities
have encountered a number of unexpected delays in the completion of these
new facilities. This had delayed compliance with the Court Decrees within the
time limits fixed therein. The District Court did not find, however, that these
delays were the result of "deliberate" ignoring of the Court's decree or that the
defendants had not made "good faith efforts * * * to meet the requirements of
the Decree." Accordingly, because of the "good faith" efforts of the defendants
to meet the deadlines fixed in the Decrees, various extensions have been
requested by the State officials for compliance with the Court decrees and were
granted on most occasions.

Despite the continued construction delays experienced, the prison officials had
by October 1, 1980, achieved through various expedients full compliance with
the Court's mandates to eliminate double celling at both the MHC and the
MRDCC institutions. Beginning in October, 1980, and continuing thereafter,
however, the prison authorities were confronted with a large influx of additional
prisoners. This increase in the prison population was due to a number of factors
beyond the control of the prison authorities. As a result, the prison officials
were forced to exceed the provisions of the Court's decrees for prison
population at the two facilities. At this point the plaintiffs petitioned the
District Court to find the defendants in contempt in the Johnson and Nelson

cases. The defendants, in turn, sought an extension of time for compliance with
the Court's mandates. The petition for a finding of contempt was denied in a
decree dated January 5, 1981. In so doing the District Court said:
9
"Certainly,
defendants have been energetic, particularly in recent days, in searching
for ways to solve the overcrowding problems which continue to exist at state penal
institutions. It is not as apparent that defendants have acted as promptly or as
effectively as they reasonably could have to eliminate unconstitutional overcrowding
at the MRDCC. However, the test is reasonable diligence, and in view of the many
unforeseen setbacks encountered by defendants in recent months, this Court is
satisfied that they have met the required standard."
10

But, in denying any citation of civil contempt on the plaintiffs' motion, the
District Court in its order of January 14, 1981, refused to extend the date for
compliance by the defendants from October 1, 1980 to August 1, 1981, as
requested by the defendants and provided rather for a monthly monitoring by
the Court of the progress of the defendants in meeting the requirements of the
Decrees at the prison facilities. It provided instead in its Decree, that "(u)ntil
the proposed new prison facilities are ready to receive prisoners, a hearing will
be held in open court every 30 days." It concluded with a requirement "that the
(State) Parole Commission adopt some of the suggestions made in this case for
accelerating releases on parole."2

11

On April 24, 1981, the defendants submitted a revised plan under which, the
defendants, in order to relieve overcrowding at the MHC and MRDCC
institutions, would double cell, under certain conditions, at the new and modern
Jessup Annex, in process of completion, and would double bunk some persons
in the open dormitories at the MHC in order largely to meet "the cyclical
overflow (of) inmates either backed up at local jails or excess population from
the Reception Center." 3 The District Court denied both the request of the
defendants for approval of their plan to relieve overcrowding by double celling
at the new Jessup Annex and double bunking at the MHC and, also, refused to
extend the time for compliance by the defendants. Almost simultaneously, by
Order dated April 27, 1981, the District Court required the Parole Commission
to parole "approximately fifty state prisoners to their federal detainers for
service of federal sentences previously imposed" and the defendant prison
officials to "transfer approximately fifty state prisoners who voluntarily agree to
be transferred to the United States Bureau of Prisons in accordance with state
and federal compacts." From both of these orders the defendants appealed.

12

Along with these proceedings involving MHC and MRDCC, the defendants in
the proceeding involving MCI-H requested an extension of time for compliance

with the Consent Decree in that case to August 1, 1981, when, upon completion
of the new Jessup Annex and the new Reception Center, it was expected that
compliance at MCI-H could be achieved through double celling of transferees
at the Jessup Annex. The District Court granted this request but limited the time
for compliance to April 15, 1981. The defendants were prevented from meeting
that deadline because of unavoidable delays in the completion of the Jessup
Annex and the Reception Center. The District Court found the defendants in
contempt and levied civil sanctions against them despite the delays in
completion of the Jessup Annex and the Reception Center. From this order,
too, the defendants appeal.
13

Since all three of the cases, consolidated in two actions, involve a single statewide prison system, in which what is done at one institution interacts on the
other institutions in the system, we consolidated the cases for appeal and now
reverse in part and affirm in part the decrees in the cases:
The issues presented on appeal are:

14

(1) Did the District Court err in ruling that double celling at the Jessup Annex
was unconstitutional and represented an invalid method of relieving
overcrowding at the three prisons involved?

15

(2) Was the District Court in error in refusing to permit double bunking in
certain of the dormitories in MHC?

16

(3) Did the District Court err in ordering the transfer of fifty inmates at MHC
and MRDCC to federal prisons in its order of April 27, 1981?

17

Before dealing directly with the primary issues in controversy, it is necessary to

take note of a preliminary contention of the plaintiffs. It is their position that
the previous decrees of the District Court prohibited double celling and double
bunking and such ruling is res judicata, subject only to modification or vacation
if "circumstances (are) so changed that 'dangers once substantial, have become
attenuated to a shadow' " and if, as a result of such new and unforeseen
circumstances, "grievous wrong" will result from a refusal to modify or vacate
the injunction. For this position, they rely on United States v. Swift & Co., 286
U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). In Swift, the Court did state the
circumstances under which a court may modify its previous decree, but, in so
doing, it made a sharp distinction between two types of decrees. The first it
described as the "continuing decree ... directed to events to come ... (involving)
the supervision of changing conduct or conditions and are thus provisional and

tentative;" the second it identified as the injunction granted to protect rights

"fully accrued upon facts so nearly permanent as to be substantially impervious
to change."4 In the first case, modification under appropriate circumstances is
clearly permissible; in the second the strict standard relied on by the plaintiffs is
applied.5 A familiar example of the first type is provided by Philadelphia
Welfare Rights Org'n. v. Shapp, 602 F.2d 1114, 1121 (3d Cir. 1979), in which
the Court said modification was proper where "(d)espite a good faith effort at
compliance, circumstances largely beyond the defendants' control and not
contemplated by the court or the parties ... (when the injunction was granted)
put achievement of the ... timetable (as fixed in the injunction) beyond reach."6
The question for purposes of decision here becomes, therefore, whether there
have been, since the entry of the original Decree in these cases, changes either
in operative facts or laws which cast a new light upon the facts or law as
originally ruled on in these cases. Unquestionably, the Decrees involved here
were in the very class described in Swift, in which the terms of the injunction
were "provisional and tentative" subject to "changing conduct or conditions."
Nor have we any difficulty in finding that there have been such changes both in
law and in operative facts in these cases.
18

Since the entry of the Decrees in these cases there has been considerable
clarification in two recent Supreme Court decisions of the constitutional
implications in the state prison context of the "cruel and unusual punishment"
provision of the Eighth Amendment, the question which lies at the heart of the
issues in these appeals. The first of these decisions Bell v. Wolfish, 441 U.S.
520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) involved, among other things,
double bunking, primarily of pretrial detainees, though convicted prisoners
were also involved, in a Correctional Center in New York City. This is the very
question posed by the defendants' request to double bunk prisoners in the
dormitories in MRDCC. The cells in the New York City prison facility were
designed for single occupancy and the planned capacity of the facility was
fixed. However, persons committed to pretrial detention began to increase at an
" 'unprecedented' " rate. To meet this increase, the prison officials inaugurated
double bunking at the facility and, on occasions, the increase became so great
they assigned inmates "to sleep on cots in the common areas until they could be
transferred to residential rooms as space became available." A class action was
begun challenging this and many other conditions at the prison facility as
applied basically to detainees.

19

The District Court and the Court of Appeals in Bell enjoined, inter alia, the
practice of double bunking and the temporary use of cots in the common areas.
In reviewing those decisions, the Supreme Court began by marking out the
distinction in rights between a detainee and a convicted prisoner. The rights of

the detainee are governed by the Due Process Clause, which "requires that (he)
not be punished," whereas "(a) sentenced inmate, on the other hand, may be
punished, although that punishment may not be 'cruel and unusual' under the
Eighth Amendment." 441 U.S. at 535, n. 16, 99 S.Ct. at 1872, n.16. There
seems to have been no dispute that double bunking was not "punishment," a
finding that would have established that the subjection of the convicted inmates
to double bunking would not have been within the interdict of the Eighth
Amendment.7 What the District Court and the Court of Appeals had rested their
decisions, enjoining the double bunking of detainees, on was that as
unconvicted persons having Due Process rights (which implicitly the Supreme
Court assumed to be greater than those of the convicted prisoner whose only
protection was against "punishment") the detainees could not be subjected to
double bunking in the absence of compelling necessity. This test was rejected
in favor of a reasonable standard. The Court then reviewed under this
reasonable standard the various contentions pressed by the plaintiffs in their
objections to double bunking. The first was "that the rooms were designed to
house only one inmate." A second was that the confinement of two persons in
one cell "constituted a 'fundamental denia(l) of decency, privacy, personal
security, and, simply, civilized humanity ...." The decision dismissed as without
merit both of these contentions.8 It, also, took note of the contention of the
plaintiffs that the prison officials could, by some adjustment or changes, avoid
double bunking and that, therefore, double bunking was "unreasonable." This
claim was found without merit, the Court declaring that "(g)overnmental action
does not have to be the only alternative or even the best alternative for it to be
reasonable, to say nothing of constitutional."9 It added that "(t)he court might
disagree with the choice of means to effectuate those interests, but it should not
'second-guess the expert administrators on matters on which they are better
informed .... Concern with minutiae of prison administration can only detract
the court from detached consideration of the one overriding question presented
to it: does the practice or condition violate the Constitution?' " 10 The Court
went on to emphasize that the opinions and recommendations on prison
standards by various groups "may be instructive in certain cases, (but) they
simply do not establish the constitutional minima; rather, they establish goals
recommended by the organization in question."11 It ended the discussion by
holding that double bunking of detainees in the facility was not
unconstitutional, even though the double bunking "may have taxed some of the
equipment or particular facilities in certain of the common areas."12
20

After argument before this Court on these appeals by the parties, the Supreme
Court buttressed its decision in Bell with Rhodes v. Chapman, --- U.S. ----, 101
S.Ct. 2392, 69 L.Ed.2d 59, (1981). In that case the Ohio prison officials, faced
with a great increase in its prison population, sought, as has the State of

Maryland in these cases, to relieve the problem by double celling prisoners in

its Southern Ohio Correctional Facility (SOCF), constructed in the early 70's.
The cells in SOCF, it was noted, were "designed, built and rated to house one
man." As a result of the double celling at the facility, the prison population
there was increased by 38% over its "design capacity." The prisoners in SOCF
filed suit, claiming that double celling in SOCF under these circumstances
violated the Eighth Amendment's prohibition against "cruel and unusual
punishment." After trial the District Court found that double celling at SOCF
was unconstitutional and it ordered the defendants to "proceed with reasonable
dispatch to formulate, propose and carry out some plan which will terminate
double celling at SOCF."13 The plans submitted were dismissed as inadequate
and the defendants appealed, arguing that the District Court had, in effect, held
that double celling was "per se unconstitutional." On appeal the Court of
Appeals affirmed, finding that the District Court had held "only that double
celling is cruel and unusual punishment under the circumstances at SOCF" and
that the findings of the District Court were not clearly erroneous on this point.14
21

In reversing the District Court and the Court of Appeals, the Supreme Court
laid out with precise clarity the limitations upon federal judicial intrusion in
state prison administration and applied those limitations particularly to
challenges to prison double celling. After declaring that "the Constitution does
not mandate comfortable prisons, ... free of discomfort" or "ideal" conditions of
confinement nor does it demand that the conditions in the prisons may not be
"restrictive (or) harsh" but merely requires that such conditions "not involve the
wanton and unnecessary infliction of pain, nor (be) ... disproportionate to the
severity of the crime warranting imprisonment," it held that "the double celling
under (the circumstances of that case did not inflict) unnecessary or wanton
pain (nor was) grossly disproportionate to the severity of crimes warranting
imprisonment." It pointed out that federal courts, reviewing prison conditions
under the Eighth Amendment, were not concerned with whether conditions
were the "best" or that there were better "alternatives" but only whether those
conditions subjected the prisoner to "cruel and unusual punishment." The
argument that the prison population in a particular prison facility exceeded
"design capacity," or that two prisoners were placed in a cell intended for single
occupancy, was dismissed with the comment that "at least three factors
influence prison population: the number of arrests, prosecution policies, and
sentencing and parole decisions. Because these factors can change rapidly,
while prisons require years to plan and build, it is extremely difficult to
calibrate a prison's 'rated' or 'design capacity' with predictions of prison
population. Memorandum of the United States as Amicus Curiae 3, 6. The
question before us is not whether the designer of SOCF guessed incorrectly
about future prison population, but whether the actual conditions of

confinement at SOCF are cruel and unusual."15 It restated what it had earlier
said in Bell that the opinions and recommendations of penal experts which
generally describe merely "goals recommended by the organization in question"
"simply do not establish the constitutional minima" which are "whether the
actual conditions of confinement ... are cruel and unusual."16 It said that it
might be agreed, too, that "double celling is not desirable" but observed that
does not make it unconstitutional.17 Of course these statements of the Court,
finding double celling not unconstitutional, were made in connection with the
circumstances in the case before the Court. But the facts in these cases as well
as the rulings in the court below, are almost a carbon copy of the facts in the
cases before us.
22

Moreover, during the time that the law with respect to double bunking and
double celling, the two primary issues in these cases, was evolving, changes
were occurring in conditions in the Maryland prison facilities themselves. In an
"energetic" and "good faith" effort to meet the deadlines fixed in the Decrees,
the defendants had, in accordance with our suggestion in Johnson v. Levine,
begun the construction of new prison facilities with the purpose of avoiding any
overcrowding in its prisons. One of those new facilities (the Jessup Annex) was
at the time of the hearing before us, for all practical purposes, completed. This
facility was modern in every detail and was the equal of, if not superior to, the
facility involved in Rhodes. The defendants were proceeding, also, with the
construction of a modern, new Reception Center. But, while this was taking
place, the defendants had been suddenly in late 1980 faced with an unexpected
rise in their prison population which they, even with their new construction,
were not prepared entirely to cope with. The defendants were not responsible
for nor could they control this unexpected increase. As the Court in Rhodes
said, "it is extremely difficult to calibrate a prison's 'rated' or 'design capacity'
with predictions of prison population."18 This unanticipated increase in prison
population compelled the prison officials to consider new methods for meeting
their problems of overcrowding. The proposal for double celling and double
bunking was the result.

23

It is quite clear from what has been said that the defendants have made an
adequate showing justifying a review anew, in the light of the clarification in
the law and the changes in conditions, of the remedy imposed by the District
Court. That remedy, however, does not strictly apply to the Jessup Annex,
which was not the subject of complaint in any one of the cases before the
District Court. For this reason it is unlikely the defendants were obligated to
seek prior approval in these proceedings for double celling at such facility.
However, the proposed double celling at Jessup was related to compliance on
the defendants' part with the provisions of the Decrees covering the other three

facilities which are directly involved in these proceedings. Under those

circumstances, the defendants, in our opinion, acted with becoming deference
to the District Court in seeking its approval for the proposed double celling as a
remedy for overcrowding at the older, less modern institutions. We accordingly
deal with the issue of double celling at the Jessup Annex on the assumption
that such issue was properly before the District Court in these cases. Under the
authority of Rhodes and on the basis of the established and planned conditions
at the Annex, we conclude that the District Court erred in refusing to approve
double celling at the Jessup Annex under the terms and conditions proposed by
the defendants.
24

The District Court, however, refused to approve double celling, holding that as
a matter of federal constitutional law double celling is not permissible in the
prisons of Maryland. In declaring this absolute rule proscribing double celling,
the District Court did not relate its decision to the condition of the prison
facility where double celling was proposed. It decreed the rule applied equally
to "new as well as old prison buildings." In conformity with this ruling, it did
not take notice of the modernness of the Jessup Annex. The only comment it
made about the new facility at Jessup was that it "was not designed for double
celling." Other than that bare comment, it faulted none of the facilities or
procedures at the new modern prison; it refused to approve double celling at
the Jessup Annex simply because, as it flatly put it, "double celling is not an
acceptable solution to the problem of overcrowding in Maryland's prisons" and
"two prisoners should not be confined to a single cell." That such a strict and
inflexible application of the constitutional prohibition on "cruel and unusual
punishment" in the prison environment, made without any consideration of
conditions at the prison where double celling was proposed other than the mere
design capacity of the prison, is clearly at variance with Rhodes v. Chapman,
supra, and with the conditions at the Jessup Annex.

25

The facilities and conditions of confinement at the Jessup Annex are as good, if
not better than those at SOCF. The cells are roughly the same size; there is no
significant difference in the recreational opportunities; the provision for food,
medical, dental and psychiatric services are comparable; the facilities in the
cells are practically the same; all in all, both facilities those in Ohio and those in
Maryland are in line with the facilities in the most modern penal institutions.
The defendants are just as entitled as were the defendants in Rhodes to institute
double celling at the Jessup Annex and, using the words of the Supreme Court
in Rhodes, the District Court had "no authority to consider whether double
celling ... (at Jessup Annex) was the best (or proper) response to the increase in
(Maryland's) state-wide prison population." The same result is required in these
cases.

26

Double bunking in the dormitories, the other proposal of the defendants under
review, would, it is true, increase by a maximum of 150 inmates the prison
population in the dormitories, and thus, unlike the double celling request,
would, if approved, represent a departure from the original Decree of the
District Court, setting an absolute maximum on the number of prisoners in such
dormitories. The District Court gave no reason for its denial of the request to
double bunk. Apparently, it assumed that double bunking was per se
unconstitutional. If this was its reason for denial of the request, Bell was a clear
answer in reply. Nor do we find the point that Bell involved pretrial detainees
and not convicted prisoners important.19 As we have seen, both the District
Court and the Court of Appeals in Bell conceded that double bunking of
convicted prisoners was not "punishment" and, if it was not "punishment," it
would not fall within the proscription of the Eighth Amendment, absent other
circumstances rendering it "cruel and unusual punishment." The District Court
has not identified nor have we perceived any other circumstances which could
impart to double bunking in the dormitories an unconstitutional character.

27

The proposed double bunking in the dormitories contemplated the removal of

all bunk beds in excess of 75 per dormitory and the double bunking of the
remaining 75 bunk beds, thereby increasing the prison population housed in
these four dormitories by 150 inmates. The additional inmates would be double
bunked "for a period no greater than 120 days and, if possible, no more than 60
days" under the plan. As the District Court observed in its original opinion in
Johnson, there are no cells in the dormitories and the inmates assigned there
have far greater freedom to move about than inmates confined in cells.20 In its
original order in Johnson, the District Court, after a personal inspection of the
dormitories, compared favorably the space available for each inmate in the
dormitories (55 square feet) with that available to the two inmates double celled
in other parts of the facility ("forty square foot cells ... occupied by two
inmates"). It also found that "(t)he dormitories themselves are kept reasonably
clean, and sanitation in the shower and toilet areas is adequate." In fact, it found
that conditions in one of the dormitories were "obviously superior to those
elsewhere in the institution and clearly meet constitutional requirements." It
accordingly held that "the dormitories (met) constitutional requirements" and
refused to order a reduction in the number of prisoners confined in any of the
MHC's dormitories.21 We perceive no reason why those same comments
should not apply to conditions after double bunking had been inaugurated in the
dormitories. Even after the addition of the new inmates, the actual space
available to each inmate will remain substantially the same.

28

Taking into consideration the changed circumstances freely recognized by the

District Court, which made it plain that the timetables established in the

Decrees of the District Court were not reasonably "achievable," despite the
defendants' "good faith" efforts to meet such timetables, the defendants were
entitled to a modification of the Decrees herein; and, so far as those Decrees
sought to declare double celling or double bunking in the Maryland prisons
were not "permissible" per se under federal constitutional law, they were in
error. As we have already said, the conditions in the Jessup Annex met the
standards found to be constitutional for double celling in Rhodes v. Chapman,
and the conditions in the four dormitories where the State authorities proposed
to double bunk prisoners were the equal, if not superior, to those found within
constitutional limits in Bell v. Wolfish. We accordingly vacate the District
Court's order disapproving double celling at the Jessup Annex and double
bunking, under conditions stated in the defendants' proposed plan, in four of the
dormitories at MRDCC.
29

Finally, the defendants have appealed that portion of the District Court's order
which commands them to "transfer approximately fifty state prisoners who
voluntarily agree to be transferred" to the Federal Bureau of Prisons. We
perceive no objection to this provision, if the double celling permitted at Jessup
Annex and the double bunking at the dormitories do not relieve the
overcrowding in the three institutions in controversy (MHC, MRDCC and
MHI-H), and, with this provision, we affirm this part of the District Court's
order.

30

All three actions, which have been consolidated in two actions, are remanded to
the District Court with instructions to fashion new Decrees authorizing double
celling at the Jessup Annex and double bunking in the dormitories at MRDCC,
both under the terms and conditions set forth in the proposal of the defendants.
Further, the Decree finding civil contempt against the defendants and imposing
sanctions in the MHI-H proceedings (Washington v. Keller ) is specifically
vacated.

31

Since all of these cases are interrelated and involve in one aspect or another a
single prison system, judicial time will be saved and the convenience of the
parties will be served if, on remand, all cases are consolidated and assigned to a
single judge, and we so direct on remand.

32

WINTER, Chief Judge, concurring and dissenting:

33

I agree that, except with respect to the portion of the order which directs the
transfer of fifty state prisoners to the United States Bureau of Prisons, the
judgment in No. 81-6347 should be reversed, but I think that the case should be

remanded for further proceedings rather than entry of an order approving

Maryland's proposals to institute additional double celling and double bunking.
I also agree that the judgment of civil contempt in No. 81-6368 should be
reversed. I am in full accord with the direction to consolidate these cases and
assign them to a single judge, but I would direct further that any other pending
or future litigation concerning Maryland's penal institutions should also be
consolidated with these cases. I write separately because I am constrained to
comment more fully on some of the issues where I am in agreement with the
majority, and of course I must state my reasons where I disagree.
I.
34

Rhodes v. Chapman, --- U.S. ----, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) and
Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) both stand
for the proposition, as the majority correctly points out, that double celling is
not per se unconstitutional. However, neither stands for the converse, i. e., that
double celling is never unconstitutional. Rather, in both cases the Supreme
Court recognized that under a totality of circumstances the confinement of
prisoners may constitute a violation of the Eighth Amendment when those
circumstances are "cruel and unusual under contemporary standards of
decency." Rhodes v. Chapman, --- U.S. at ----, 101 S.Ct. at 2399. It would seem
obvious that double celling is a factor in the totality of circumstances to be
measured by contemporary standards of decency.

35

Neither Rhodes v. Chapman nor Bell v. Wolfish constituted any change in the
law of this circuit with reference to double celling or the housing of prisoners in
general. In those cases the Court applied the legal principle that we had
followed in Johnson v. Levine, 588 F.2d 1378 (4 Cir. 1978) and Hite v. Leeke,
564 F.2d 670 (4 Cir. 1977): double celling is not per se unconstitutional either
as a deprivation of due process or as cruel and unusual punishment and is only
one factor to be considered when other consequences of overcrowding create
deprivations or impose unusual restrictions and disadvantages on the prison
population. In Johnson, in which we reviewed and affirmed conclusions of
Eighth Amendment violations in the Maryland House of Correction and two
other Maryland penal institutions, we identified the other consequences
revealed by the record in that case as limited opportunities for recreation,
limited opportunities for instruction and rehabilitation, overtaxed medical
facilities and staffs, complication of the maintenance of sanitation, interference
with reasonable meal service, and contribution to a high level of violence and
psychological injury to some prisoners. In holding that the district courts
correctly concluded that the Eighth Amendment had been transgressed, we
added that "(o)vercrowding, with all of its consequences, can reach such

proportions that the impact of the aggregate effect amounts to cruel and unusual
punishment." 588 F.2d at 1380-81.
36

In the light of Rhodes, Bell and our own decisions, I have no doubt that the
order of the district court in No. 81-6347 must be vacated to the extent that it
prohibited double celling at the new Jessup Annex. That facility is a new one,
and the district court denied Maryland's request for permission to double cell
primarily on the ground that double celling "is not an acceptable solution to the
problem of overcrowding in Maryland's prisons" and that this principle applies
"to new as well as old prison buildings." The district court's rationale was thus
substantially that double celling is per se unconstitutional. But this is not the
law. The district court may prohibit double celling at the new Jessup Annex
only if it finds, on an appropriate record, that the totality of the circumstances
of confinement, of which double celling is only one factor, offends
contemporary standards of decency. No such record was developed with regard
to the new Jessup Annex and no such findings were made by the district court
with respect thereto. It is therefore manifest that further proceedings are
required. But, by the same token, the fact that the facility is new should not
lead us to require the district court to allow double celling without a more
precise evidentiary showing on the part of the state. Unlike the majority, I
cannot read this record as demonstrating that the new Jessup Annex is
indistinguishable from the prison facility considered in Rhodes with respect to
which the Court held that double celling was not constitutionally prohibited. In
Rhodes, the district judge visited the prison facility at issue and considered
evidence at a trial of the effect of double celling on the prison's food, air,
visitation procedure, plumbing, library, training programs, and health care. See
Chapman v. Rhodes, 434 F.Supp. 1007 (S.D. Ohio 1977), aff'd without
published opinion, 624 F.2d 1099 (6 Cir. 1980), rev'd, --- U.S. ----, 101 S.Ct.
2392, 69 L.Ed.2d 59 (1981). There is no similar evidence in the existing record
regarding the conditions at the Jessup Annex. There are simply too many
pertinent factors, e. g., food service facilities, medical facilities, recreational
and exercise facilities, about that facility, both whether they exist and when
they will become operative, which are unknown to permit the majority's hasty
conclusion.

37

If it stood alone, I would affirm the portion of the district court's order in No.
81-6347 which prohibits double bunking at the Maryland House of Correction
(MHC) and the consequent increase in inmate population. It is true that
Maryland proved a good faith effort to reduce the prison population at MHC
and an unforeseen and uncontrollable increase in prison population with a
compelling need for more prisoner beds. But the fact remains that under a
totality of the circumstances test the district court found that MHC was

unconstitutionally overcrowded, Johnson v. Levine, 450 F.Supp. 648

(D.Md.1978), and we affirmed that finding, 588 F.2d 1378 (4 Cir. 1978).
Maryland, in this record, has not shown such a change in the various factors
applicable to the prior finding with respect to MHC that this finding may be
quickly disregarded.
38

But, of course, the prohibition against double bunking at MHC was not the sole
provision of the district court's order in No. 81-6347. As I have stated, I would
vacate at least one other provision of that order, and in recognition that there is
a relationship between what I would vacate and what I would otherwise be
prepared to affirm, I would conclude to vacate the prohibition against double
bunking and remand this aspect of the case for further consideration. Remand
will also have the beneficial effect of affording Maryland an opportunity to
show correction of those adverse factors at MHC which led to the earlier
conclusion that confinement there violated the Eighth Amendment. I stress,
however, that the burden of proof in this regard is on Maryland as a result of
the prior adjudication.

II.
39

I am in accord with the majority in vacating the finding of contempt in No. 816368. I do not find, however, in the majority opinion any expression of the
reasons for this action, and hence I give expression to my own views.

40

The finding of civil contempt and the appointment of a special master to collect
and administer the fines imposed followed closely upon the district court's
denial of Maryland's motion to relieve it of the provisions of the consent decree
under which Maryland agreed to end double celling at the Maryland
Correctional Institution at Hagerstown (MCI-H). The state did not appeal from
denial of its motion to modify although it presented compelling reasons, i. e., its
inability to complete new facilities and the unprecedented growth in prison
population, why modification should have been permitted absent a showing
under a totality of circumstances test that confinement at MCI-H at that
prisoner population level would offend contemporary standards of decency. The
state appealed only from the finding of civil contempt and the appointment of
the special master.

41

On this record I am almost impelled to the conclusion that a finding of civil

contempt would not be sustainable under the familiar principle that one is not in
contempt by reason of the mere failure to achieve an objective if one has been
reasonably diligent and energetic in attempting to accomplish what was
ordered. See, e. g., Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9 Cir.

1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977);
Washington Metropolitan Area Transit Authority v. Amalgamated Transit
Union, 531 F.2d 617, 621 (D.C.Cir.1976). In short I am inclined to think that
the record shows that Maryland has taken all reasonable steps to eliminate
overcrowding at MCI-H and has failed to achieve that objective as a result of
circumstances beyond its control. The district court did not find any disregard
or willful defiance of the consent decree. Indeed it practically acknowledged
that Maryland had not acted in any manner contemptuously of its decree. But
the district court made no specific findings of fact with respect to Maryland's
proferred defense and hence its finding of contempt cannot stand because of its
failure to comply with Fed.R.Civ.P. 52(a). See Metropolitan Washington
Authority v. Amalgamated Transit Union, supra.
42

On remand no useful purpose would be served by a retrial of the contempt

case. The state's motion for modification of the consent order should be
reconsidered in light of our reversal in No. 81-6347 of the district court's order
prohibiting the state from implementing its plan to end overcrowding at the
various Maryland penal institutions and in light of the need to consider MCI-H
as part of the state's overall prison scheme, rather than in isolation. The latter
purpose will be partially served by the majority's salutary direction to
consolidate this case with No. 81-6347.

III.
43

On this record I would affirm the portion of the district court's order in No. 816347 which directs the transfer of fifty state prisoners to the United States
Bureau of Prisons. The record, as I read it, shows that Maryland's prison
population has reached the level where its prison facilities are sorely overtaxed
even if it be subsequently found that confinement therein does not amount to a
violation of the Eighth Amendment. Because I think that the record does show
that Maryland's plan for double celling and double bunking, if permitted, will
not sufficiently relieve the problem of overcrowding, I would not make
affirmance conditional as the majority has done. Rather, in affirming, I would
authorize the district court to reconsider and modify, despite affirmance, this
aspect of its order as part of an overall plan to reduce overcrowding if it should
find that the transfers are not required.

IV.
44

Finally, I express my agreement with the majority's direction to consolidate

these separate cases and to have them assigned to a single district judge. But I
would direct that any other pending litigation as well as any future litigation

which may be instituted in which there is a claim that confinement at any

Maryland penal institution would violate the Eighth Amendment be also
consolidated in the same proceeding and assigned to the same district judge.
More is at stake than merely a saving of judicial time and the convenience of
the parties. While it is true that Maryland's penal institutions are classified with
respect to the types of offenders which are lodged therein and the gravity of
their offenses, there is a single system of penal institutions and the various
institutions are to some extent fungible. Thus the overall solution of any
unconstitutional overcrowding must proceed initially from a consideration of
both Maryland's overall need for places of confinement and Maryland's entire
existing facilities. Previous appeals to this court amply demonstrate that the
problem is not capable of solution on the basis of separate consideration of
separate institutions.
45

For these reasons I concur in part and, respectfully, dissent in part.

46

Circuit Judge BUTZNER and Circuit Judge JAMES DICKSON PHILLIPS

authorize me to say that they join in this opinion.

The relief contemplated by the State rested upon the completion particularly of
the two facilities represented by the new Jessup Annex and the new Reception
Center

The request included some other minor changes in the previous Decrees, which
were granted and which are therefore not involved in the appeals

It, also, renewed its request for an extension of time to make the necessary
adjustments

Id. at 114, 52 S.Ct. at 462

The Court found that Swift fell within the second situation described and
accordingly refused to reverse the refusal to modify. The reason for such
conclusion has been set forth in Securities & Exch. Com'n v. Warren, 583 F.2d
115, 119 (3d Cir. 1978):
"The Court was thus realistically apprehensive, particularly in light of the
defendants' past aggressive and abusive conduct. It perceived that the
defendants were still in a very realistic position to perpetrate their monopolistic
and other unlawful practices unless the injunctive restraints were continued.
The Court's considerations in rejecting modification of the injunction must be

viewed in the context of the unusual condition before it, the public interest, and
the perceived continuing danger to the nation's economy."
6

See also 11 Wright & Miller, Federal Practice & Procedure, 2961, pp. 604605 (1973):
"The three traditional reasons for ordering the modification or vacation of an
injunction are (1) changes in operative facts, (2) changes in the relevant
decisional law, and (3) changes in any applicable statutory law. In addition, one
court has indicated that although changes in fact or law afford the clearest bases
for altering an injunction; the power of equity has repeatedly been recognized
as extending also to cases where a better appreciation of the facts in light of
experience indicates that the decree is not properly adapted to accomplishing its
purpose."

See 441 U.S. at 541, 99 S.Ct. at 1875:

"Neither the District Court nor the Court of Appeals intimated that it considered
'double-bunking' to constitute punishment; instead, they found that it
contravened the compelling necessity test, which today we reject."

441 U.S. at 542, 99 S.Ct. at 1875

441 U.S. at 542-43, n. 25, 99 S.Ct. at 1875-76, n. 25

10

441 U.S. at 544, 99 S.Ct. at 1877

11

441 U.S. at 544, n. 27, 99 S.Ct. at 1876, n. 27

12

441 U.S. at 543, 99 S.Ct. at 1876

13

Chapman v. Rhodes, 434 F.Supp. 1007, 1022 (S.D.Ohio W.D.1977), aff'd., 624
F.2d 1099 (1980) (Tables)

14

The quotation from the decision of the Court of Appeals appears in the opinion
of the Supreme Court in Rhodes
It will be observed that the decisions of the District Court and the Court of
Appeals were substantially the same as in Johnson v. Levine, supra.

15

Rhodes, n. 15

16

In Capps v. Atiyeh, 495 F.Supp. 802 (D.Or.1980), Justice Rehnquist granted a

stay of a District Court's injunction against double celling in the prison system
of the State of Oregon, --- U.S. ----, 101 S.Ct. 829, 66 L.Ed.2d 785 (1981). In

his comments granting the stay, Justice Rehnquist said that "nobody promised
(the prison inmates convicted of crime) a rose garden; and I know of nothing in
the Eighth Amendment which requires that they be housed in a manner most
pleasing to them, or considered even by most knowledgeable penal authorities
to be likely to avoid confrontations, psychological depression, and the like.
They have been convicted of crime, and there is nothing in the Constitution
which forbids their being penalized as a result of that conviction." Since he
found that Rhodes v. Chapman would be dispositive of the case, Justice
Rehnquist said he thought it "best, in the exercise of my function as Circuit
Justice, that the District Court have the benefit of this Court's opinion in that
case before it takes over the management of the Oregon prison system."
17

Rhodes, n. 13

18

Rhodes, n. 15

19

It may be argued that the rights of detainees, which was the issue in Bell, are
different from those of convicted prisoners. The District Court and the Court of
Appeals in Bell agreed, but those Courts, in so doing, concluded that the
detainees had greater rights than the convicted prisoners. Moreover, the single
difference is that a pretrial detainee's imprisonment and thus his double celling
may be for a short time, whereas the convicted prisoner is subjected for longer
times to double celling. Justice Rehnquist in his opinion in Capps, supra,
branded this argument as "unpersuasive." In any event, the distinction is
inapposite here, since under the defendants' proposal, a prisoner is to be double
bunked "for a period no greater than 120 days and, if possible, no more than 60
days."

20

450 F.Supp. at 655, 658

21

450 F.Supp. at 658, n. 16